Calcutta High Court (Appellete Side)
Cesc Limited & Anr vs Deputy Chief Engineer-Customer ... on 4 February, 2011
Author: Jyotirmay Bhattacharya
Bench: Jyotirmay Bhattacharya
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IN THE HIGH COURT AT CALCUTTA
Constitutional Writ Jurisdiction
Appellate Side
Present:
The Hon'ble Justice Jyotirmay Bhattacharya
W. P. No. 29552(W) of 2008
CESC LIMITED & ANR.
Versus
DEPUTY CHIEF ENGINEER-CUSTOMER RELATION MANAGEMENT CELL &
APPELLATE AUTHORITY & ORS.
For the Petitioners : Mr. Samit Talukdar
Mr. Sourav Khaitan
For the Respondent No.3 : Mr. Biswaroop Bhattacharya
Ms. Reshmi Ghosh
Judgment On : February 4, 2011.
It is a very rare and unusual occasion where CESC Limited being the
licensing company, has to come before this Court with the writ petition
challenging an order passed by the Appellate Authority on 19th September, 2008
whereby final order of assessment was passed by the Assessing Officer - III under
Section 126 of the Electricity Act, 2003 for indulging in unauthorized use of
electricity by extending supply of energy by the respondent no. 3 being a
consumer to a portion of a disconnected consumer in the same premises being
premises No. 56/H/1, Canal Circle Road, Kolkata-700054.
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Let me now give the short background of the case under which the
impugned order was passed by the Appellate Authority on 19th September, 2008.
During inspection of the service installation and metering system catering
to the supply of electricity to the respondent no.3 at her premises, it was detected
by the inspecting team that the said respondent indulged by way of extending
supply of energy to another consumer of the said premises, whose supply was
disconnected on 8th January, 2004 as the said consumer had been found guilty
of indulging in unauthorized use of electricity. Under such circumstances, the
supply of electricity to the respondent no.3 was disconnected on 4th April, 2008
and a complaint was also accordingly made to the local Police Station.
Subsequently, on perusal of the records relating to the aforesaid inspection
and the other allied papers relating to both the aforesaid supplies, the Assessing
Officer came to the conclusion that the respondent no.3 had indulged in
unauthorized use of electricity. Accordingly, a provisional assessment of the
charges for unauthorized use of electricity to the tune of Rs.1,98,783/- (Rupees
One lakh ninety eight thousand seven hundred and eighty three only) inclusive of
applicable government duty, was assessed by the said Assessing Officer - III.
Copy of the provisional assessment was served upon the respondent no.3
indicating therein that if the respondent no.3, so desires, she may file objection
against the order of provisional assessment before the said Assessing Officer
within 15 days from the date of the said provisional assessment so that final
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assessment can be made after giving a reasonable opportunity of hearing to the
said consumer.
An objection was submitted by the respondent no.3 before the said
Assessing Officer challenging the correctness and/or propriety of the said order.
Allegation regarding indulging in unauthorized supply of electricity to another
consumer in the said premises whose supply was disconnected earlier, was
denied by the said respondent. The said respondent also denied that she had
any relation with the other consumer to whom such supply was allegedly given
by her unauthorisedly as mentioned in the order of provisional assessment. The
said respondent also contended that the allegation regarding indulging in
unauthorized supply of electricity by the said respondent by extending such
supply from her connection to the other consumer in the same premises is also
untrue and incorrect as the said consumer whose supply of electricity was
allegedly disconnected by CESC Limited as back as on 8th January, 2004 is still
enjoying electricity in the portion in his occupation even after disconnection of
supply of electricity of the respondent no.3 on 4th April, 2008.
Though, such an objection was submitted by the respondent no.3 but the
said respondent failed to appear before the said Assessing Officer on the date
when her objection was fixed for hearing. Under such a situation the Assessing
Officer had to scrutinize the report prepared by the inspecting team of CESC
Limited after disconnection of supply, the order of provisional assessment and
the written representation submitted by the consumer and ultimately after
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hearing the representative of CESC Limited, he held that the respondent no.3
indulged in unauthorized use of electricity by extending her supply of electricity
to another consumer in the same premises whose service was disconnected in
January, 2004. Accordingly, final order of assessment was passed ex parte by
the said Assessing Officer on 19th April, 2008 holding that the respondent no.3 is
liable to pay a sum of Rs.1,98,783/- for energy charges of 39493 units at the
penal rate inclusive of all Government duty payable to the Government of West
Bengal.
The respondent no.3 was aggrieved by the final order passed by the said
Assessing Officer, as aforesaid. Hence the said respondent preferred an appeal
before the Appellate Authority. The Appellate Authority ultimately set aside the
said final assessment order passed by the said Assessing Officer by its order
dated 19th September, 2008 by holding inter alia that since no
material/substance such as conductor/cable though which the electricity was
allegedly unauthorisedly supplied to the other disconnected consumer, had not
been seized by the inspecting team, the allegation regarding such unauthorized
supply of power by the respondent no.3 herein to the other disconnected
consumer was not established. The Appellate Authority also came to the
aforesaid conclusion as no reply was filed by the CESC Authority against the
objection filed by respondent no.3 challenging the correctness of the provisional
assessment order made by the Assessing Officer - III, as aforesaid.
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The CESC Authority is thus aggrieved by the said order of the Appellate
Authority. Hence the CESC Authority has come before this Court with this writ
petition.
Mr. Talukdar, learned Senior Counsel, appearing for the CESC Authority,
strenuously argued before this Court that since there is no provision for filing
any reply to the objection filed by such a consumer under the scheme formulated
under Section 126 of the Electricity Act, 2003, the appellate Authority ought not
to have reacted for not filing such a reply by the CESC Authority against the
objection submitted by the said respondent. He further contended that even the
said Act does not cast any obligation and/or duty upon the inspecting team to
seize the cables and/or conductor which were used for extending such
unauthorized supply of electricity by a consumer to another person and as such
no adverse inference ought to have been drawn against the CESC Limited for not
seizing those materials in course of inspection and/or disconnection of supply of
electricity of such consumer.
This Court finds some substance in the submission of Mr. Talukdar, to the
effect, that for non-filing of the reply, the Appellate Authority ought not to have
drawn any adverse inference against the petitioner by holding that since the
allegation made by the consumer in her objection remains uncontroverted, such
allegations are proved, as it is rightly pointed out by Mr. Talukdar that since
there is no provision under the said Act which provides for filing of any reply by
the CESC Limited against the objection filed by its consumer, the CESC Limited
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had no obligation to file such reply and consequently adverse inference ought not
to have been drawn for non-filing of such reply.
Section 126 of the said Act provides that if a consumer has any grievance
against the provisional assessment made by the Assessing Officer, such
consumer may submit his objection to the Assessing Officer challenging the
correctness of such provisional assessment and if such an objection is filed
within 15 days from the date of the provisional order, the Assessing Officer is
required to pass a final order after giving reasonable opportunity of hearing to the
said consumer. In the instant case, an opportunity was granted to the
respondent no.3 to substantiate her contention, as highlighted in her said
objection but such opportunity was not availed of, by the said consumer. Thus
this Court is of the view that the said consumer has failed to establish her
objection before the Assessing Officer - III in course of passing the final
assessment order by the said Assessing Officer. In fact, the Assessing Officer
was not required to consider the said objection at all, as the same was not
ultimately pressed by the said respondent no.3. The said respondent thus
cannot make any grievance for non-consideration of the points mentioned in her
said objection by the Assessing Officer.
This Court, however, cannot accept the other contention of Mr. Talukdar,
learned Senior Counsel, as even though the Act does not explicitly make any
provision regarding seizure of such articles and/or materials which were used for
extending supply of electricity unauthorisedly to another consumer, but still then
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this Court, is of the view, that such seizure is always necessary to establish their
allegation regarding such unauthorized extension of energy by a consumer to
another person. Unless such seizure is made and a seizure list is prepared and
gets it signed by the consumer and/or his representative and/or other
independent witness present at the site, the Court feels inconvenience to verify
the correctness of the allegation made out by the CESC Authority against its
consumer. Thus, this Court holds that the Appellate Authority was not
unjustified in supporting its conclusion by holding that the allegation regarding
unauthorized supply of electricity by the respondent no.3 to another
disconnected consumer had not been proved in the instant case as the conductor
and/or cables which were allegedly used for such unauthorized extension of
electricity by the respondent no.3 to the disconnected consumer, were not seized.
Another interesting point has been raised by Mr. Bhattacharya, learned
Advocate, appearing for the respondent no.3 who not only challenged the
correctness and/or propriety of the final order of assessment made by the
Assessing Officer - III for the reasons as indicated in his client's aforesaid
objection submitted before the said Assessing Officer but also challenged the
authority of the said Assessing Officer either to pass any order of provisional
assessment or even to pass any order of final assessment in this matter as
admittedly the said Assessing Officer - III, who passed the provisional
assessment order and the final assessment order, was not the member of the
inspecting team which allegedly detected the alleged unauthorized extension of
supply of electricity by his client to another person in the same premises whose
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service was disconnected sometime in 2004. By referring to a Division Bench
decision of this Hon'ble Court in the case of Narayan Chandra Kundu vs. State of
West Bengal & Ors. reported in 2008 (1) CHN 459, Mr. Bhattacharya contended
that the Assessing Officer being not a member of the inspecting team which
detected the alleged unauthorized use of electricity, was not competent to pass
either provisional assessment order or the final assessment order under Section
126 of the Electricity Act, 2003.
On perusal of the said decision of the Division Bench of the Hon'ble Court,
this Court finds that the Division Bench, after considering the provisions
contained in Sections 126 and 135 of the said Act, held that the legislature
intended that the Assessing Officer must be a person who was actually a member
of the inspecting team at the time of detecting the pilferage or the unauthorized
use of electricity so that he can pass the order of assessment not on the basis of
papers placed before him but after actually visiting the site at the time of
detection of the illegality. Thus this Court finds that the aforesaid decision of the
Division Bench of this Hon'ble Court supports the aforesaid contention of Mr.
Bhattacharya.
Mr. Talukdar, learned Senior Counsel, appearing for the petitioner, in his
usual fairness submitted before this Court that though such a view was taken by
the Division Bench of this Hon'ble Court and the same is also binding upon this
Court but the Division bench of Bombay High Court in an unreported decision
passed on 27th July, 2006 in the case of Reliance Energy Limited and Another vs.
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Chief Engineer (Electrical), P.W.D. Department and Ors. in W.P. No. 1902 of
2005, held otherwise. It was held therein that it will be possible to read Section
126 to mean that the Assessing Officer need not restrict himself to the inspection
carried out personally by the Assessing Officer as notified in the explanation to
Section 126 but can rely on the record and inspection carried out by an Officer
authorized under Section 135(2) of the said Act in discharge of his duties. It was
further held therein that the only limitation which would be there in such a case
that the report prepared by such other authorized Officer will have to be made
available to the consumer and this evidentiary value will have to be proved by the
generating company or allowing such other authorized Officer to be examined by
the assessee if the assessee so applies. The Division Bench of Bombay High
Court thus ultimately held that it is possible to read into Section 126(1) that
apart from the Assessing Officer, the inspection carried out by the Officer
authorized by the State Government under Section 135(2) can also be the basis
for making a provisional assessment under Section 126(1) of the said Act.
By referring to the aforesaid Division Bench judgment of Bombay High
Court Mr. Talukdar submitted that possibly a rethinking is necessary for giving
proper interpretation to the provision contained in Section 126 of the said Act so
that the question as to whether the presence of the Assessing Officer during the
time of such inspection is mandatory or not and/or further as to whether the
assessment order either provisional or final is vitiated, if the Assessing Officer is
ultimately found to be not a member of the inspection team which actually
detected such unauthorized use of energy by a consumer, in course of such
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inspection. In this regard this Court has considered the provisions of Sections
126 and 135 of the Electricity Act, 2003 for finding out a proper solution. The
provisions contained in Sections 126 and 135 of the said Act are set out
hereunder for proper appreciation of scheme formulated therein for passing the
final order in certain circumstances;-
"126. (1) If an inspection of any place or premises or after inspection of the
equipments, gadgets, machines, devices found connected or used or
after inspection of records maintained by any person, the assessing
officer comes the conclusion that such person is indulging in
unauthorized use of electricity, he shall provisionally assess to the
best of his judgment the electricity charges payable by such person or
by any other person benefited by such use.
(2) The order of provisional assessment shall be served upon the person
in occupation or possession or in charge of the place or promises in
such manner as may be prescribed.
(3) The person, on whom a notice has been served under sub section (2),
shall be entitled to file objections, if any, against the provisional
assessment before the assessing officer, who may, after affording a
reasonable opportunity of hearing to such person, pass a final order of
assessment of the electricity charges payable by such person.
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(4) Any person served with the order of provisional assessment may,
accept such assessment and deposit the assessed amount with the
license within seven days of service of such provisional assessment
order upon him.
Provided that in case the person deposits the assessed amount, he
shall not be subjected to any further liability or any action by any
authority whatsoever.
(5) If the assessing officer reaches to the conclusion that unauthorized use
of electricity has taken place, it shall be presumed that such
unauthorized use of electricity was contenting for a period of three
months immediately preceding the date of inspection in case of
domestic and agricultural services and for a period of six months
immediately preceding the date of inspection for all other categories of
services, unless the onus is rebutted by the person, occupier or
possessor of such premises or place.
(6) The assessment under this section shall be made at a rate equal to
one and half times the tariff applicable for the relevant category of
services specified in sub section (5).
Explanation: For the purposes of this section:
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(a) "assessing officer" means an officer of a State Government or
Board or licensee, as the case may be, designated as such by the
State Government;
(b) "unauthorized use of electricity" means the usage of electricity-
(i) by any artificial means; or (ii) by a means not authorized by
the concerned person or authority or licensee; or (iii) through
a tampered meter; or (iv) for the purpose other than for
which the usage of electricity was authorised."
"135. Theft of electricity: (1) whoever, dishonestly, -
...................................
(2) Any officer authorised in this behalf by the State Government may -
(a) enter, inspect, break open and search any place or premises in which he has reason to believe that electricity has been or in being used unauthorisedly; (b) search, seize and remove all such devices, instruments, wires and any other facilitator or articles which has been or is being used for unauthorized use of electricity; (c) examine or seize any books of account or documents which in his opinion shall be useful for or relevant to, any proceedings in respect of the offence under sub section (1) and allow the person from whose custody such 13 books of account or documents are seized to make copies thereof or take extracts therefrom in his presence......."
In fact, three alternative ways/courses are contemplated in Section 126(1) of the said Act, following which the Assessing Officer can come to the conclusion that any person is indulging in unauthorized use of electricity. These are the following three courses following which the Assessing Officer can come to the said conclusion;-
i) on inspection of any place or premises; or
ii) on inspection of the equipments, gadgets, machines, devices found
connected or used; or
iii) on inspection of records maintained by any person.
The use of expression 'or' in between the aforesaid three situations, in my view, was used in a disjunctive way. The expression 'or' used in between the aforesaid three situations cannot be read as conjunctive. If 'or' used in between the three alternatives situations is read as conjunctive, then even the provisional assessment cannot be made by the Assessing Officer unless all the aforesaid three courses are followed. In my view, that was never the intention of the legislature. The last situation which is mentioned in item no. (iii) as above, clearly indicates that provisional assessment can be made by the Assessing Officer, if the Assessing Officer after inspecting the records maintained by any 14 person can come to the conclusion that such person is indulging in unauthorized use of electricity and such conclusion can be arrived at, even without following the other two courses as mentioned above. Thus this Court is of the view, that if the assessing officer is satisfied about the unauthorized use of electricity by following any of the courses as mentioned above, he is competent to pass provisional assessment order. The expression 'any person' used in the last alternative course is significant as instead of using the expression consumer, the expression 'any person' is used therein. In my view, this 'any person' is used in the said provision to include all persons including the consumer, the beneficiary of such illegal connection or any person who is related to such unauthorized extension and/or use of such electricity and the officer authorised to inspect any premises under Section 135(2) of the said Act. The records maintained by any person means and includes the records of inspection prepared by the officer having authority under Section 135(2) of the said Act.
The explanation which was also added to the said Section 126 of the said Act provides that the Assessing Officer means an Officer of State Government or Board or Licensee, as the case may be, designated by the State Government.
Section 135(2) of the said Act provides that any Officer authorized in this behalf by the State Government may-
(a) enter, inspect, break open and search any place or premises in which he had reason to believe that electricity has been or is being used unauthorisedly;
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(b) search, seize and remove all such devices, instruments, wires and any other facilitator or article which has been or is being used for unauthorized use of electricity;
(c) examine or seize any books or account or documents which in his opinion shall be useful for or relevant to, any proceedings in respect of the offence under sub-section (1) and allow the person from whose custody such books of account of documents are seized to make copies hereof or take extracts therefrom in his presence.
Thus, the said provision clearly indicates that it is only those Officers who are authorized by the State Government as per Section 135(1) of the said Act, may enter and inspect and/or carry out the aforesaid activities in any premises if he has reasons to believe that electricity has been or is being used unauthorisedly. Thus a special authorization is necessary for carrying out those acts as mentioned under Section 135(2) of the said Act. Even the language of Section 126 of the said Act indicates that the assessing officer is impliedly authorised to inspect personally and may also pass provisional and final order of assessment, if he is satisfied with the preconditions for such assessment. If the provision contained in Section 126 of the said Act including the explanation added thereto are considered along with the provision contained in Section 135(2) of the said Act, this Court, is of the view, that it was never the intention of the 16 legislature that it is only those officers who are authorized by the State Government as per Section 135(1) of the said Act, can enter and inspect the premises of any person for the purpose, as aforesaid. Conjoint reading of these two provisions makes it clear that even when any inspection is made by any authorized Officer who is not the Assessing Officer and a report is submitted regarding such unauthorized use of energy by such Officer, the Assessing Officer is competent to consider such report for forming his opinion regarding such unauthorized use of energy by any person and may pass the order of provisional assessment and final assessment by following the provisions contained in Section
126. Be that as it may, though this Court is of the view that the conclusion which was arrived at by the Division Bench of this Hon'ble Court, is not very much convincing and at the same time the decision of Division Bench of Bombay High Court appears to be much more convincing, but still then since the decision of the Division Bench of this Hon'ble Court is binding upon this Court, this Court by following the said Division Bench decision of this Court holds that the assessment order, which was made by the said Assessing Officer either at the stage of passing of the provisional order of assessment or at the stage of passing of the final order of assessment, was vitiated as the said Assessing Officer admittedly did not personally inspect the service installation and the metering system used for catering supply of electricity to the respondent no. 3 in the said premises before forming an opinion regarding fulfilment of the preconditions for passing an order of provisional assessment in the instant case. 17
As such, the order of the Appellate Authority which is impugned in this writ petition cannot be interfered with for the reason as indicated above. The writ petition thus stands rejected.
While entertaining this writ petition, direction was passed upon the licensee to restore the supply of electricity of the petitioner immediately upon deposit of a sum of Rs.40.000/- by the petitioner with CESE Limited in addition to deposit of 50% of the amount covered by final assessment, which she had already made even prior to the filing of this writ petition with a further rider that in the event the writ petition fails, the licensee will be liable to pay interest on both the previous sum deposited and the sum of Rs.40,000/- which will be deposited by the private respondent in pursuance of the said interim order.
Fact remains the private respondent deposited the sum of Rs.40,000/- with the licensee in addition to the sum deposited by her earlier.
Since the writ petition is dismissed, the private respondent is entitled to get back the entire deposit which she made in connection with the proceeding in question together with interest @8% per annum from the date of such respective deposits upto the date of payment thereof to the private respondent No.3 by the petitioner. Such payment should be made within four weeks from date.
Urgent xerox certified copy of this order, if applied for, be given to the parties as expeditiously as possible.
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(Jyotirmay Bhattacharya, J.)